Appellate Panel Faces Many Costs Issues, Siding With Krikorian That Order Denying Motion to Tax Appellate Costs Is Appealable.
Although dealing with the propriety of a lower court order awarding respondents $1,037.25 in appellate costs for court reporter fees in preparing a reporter’s transcript, the appellate court affirmed in Williams v. Safire, Case No. A132145 (1st Dist., Div. 5 Feb. 28, 2013) (unpublished), but faced many nuanced issues in doing so.
Initially, it had to decide if an order on a motion to tax costs on appeal is an appealable order, an issue which has generated a split in appellate thinking. Compare Barnes v. Litton Systems, Inc., 28 Cal.App.4th 681, 682, 685 (2d Dist., Div. 5 1994) [not appealable] with Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4th 1075, 1083, 1085 (4th Dist., Div. 2 2011) [appealable]. The 1st Dist., Div. 5 panel sided with Krikorian [reviewed in our March 25, 2011 post]. The panel also found that the First District decision in Distefano v. Hall, 218 Cal.App.2d 657 (1963), an older decision, did not compel a different result because it did not deal with costs on appeal. So onto the merits.
Appellant then argued that the lower court erred by denying a request for a statement of decision, but none was required upon decision of a motion. (Lavine v. Hospital of the Good Samaritan, 169 Cal.App.3d 1019, 1026 (1985).)
Next, even though the appellate court in an earlier appeal did deny respondents costs as sanctions, respondents as prevailing parties were entitled to routine appellate costs as a matter of right independently.
Appellant then contended that the transcripts were not necessary or reasonable in nature. The appellate court found that there was no “necessary” requirement relating to appellate costs. As to reasonableness, the lower court was correct that the transcripts were reasonable in order to create the record to gauge the merits of the costs award if–as happened–the appellate court rejected respondents’ nonappealability argument.
Finally, the panel determined that appellant failed to shift the burden on the costs issue based on the verified costs memorandum, with reliance on vague statements in points and authorities rather than evidence not doing the trick. (Rappenecker v. Sea-Land Service, Inc., 93 Cal.App.3d 256, 266 (1979).)